With a new, conservative majority firmly in control of the National Labor Relations Board, employers remain unclear over the continuing viability of positions taken by the previous Board majority. Recent opinions issued by NLRB counsel shed some light on these issues, and indicate that at least some of these older positions continue to reflect current legal requirements.
In the first opinion, an employer asked whether an employee’s Facebook postings about alleged safety concerns constitute protected concerted activity, even though they were not part of a direct dialogue with co-workers. Section 7 of the NLRA protects employees’ discussions of terms and conditions of employment. NLRB counsel concluded that despite the lack of mutual dialogue, employee comments about safety issues are “inherently concerted,” meaning that the Facebook comments were protected despite the lack of any discussion with co-workers.
In the second opinion, the employer requested guidance regarding a number of employee handbook policies, including dress code, confidential information, media relations, and personal cellphone use. Using the NLRB’s recent Boeing decision, Board counsel concluded that the dress code was legal, despite a prohibition against “inappropriate commercial advertising or insignia.” Employees would not reasonably read this policy to exclude union insignia. Similarly, a confidential information that prohibits employees from disclosing personal identifying information about co-workers was intended to prevent misuse of such information, and not to inhibit concerted activity. A policy requiring that only authorized persons speak with the media on behalf of the company would not interfere with employees’ ability to speak on their own behalf.
NLRB counsel did conclude that a personal cellphone policy that prohibits use during lunch and break periods violates Section 7 concerted activity rights. While employers may restrict cellphone use and possession during actual working time, employees have the right to communicate with one another during non-work time. The employer’s exception for health and other emergencies did not resolve this fundamental communications issue.